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Hate Speech Laws in Japan, the United States, and Canada Craig Martin Hastings Constitutional Law Quarterly Volume 45 Article 4 Number 3 Spring 2018 1-1-2018 Striking the Right Balance: Hate Speech Laws in Japan, the United States, and Canada Craig Martin Follow this and additional works at: https://repository.uchastings.edu/ hastings_constitutional_law_quaterly Part of the Constitutional Law Commons Recommended Citation Craig Martin, Striking the Right Balance: Hate Speech Laws in Japan, the United States, and Canada, 45 Hastings Const. L.Q. 455 (2018). Available at: https://repository.uchastings.edu/hastings_constitutional_law_quaterly/vol45/iss3/4 This Symposium is brought to you for free and open access by the Law Journals at UC Hastings Scholarship Repository. It has been accepted for inclusion in Hastings Constitutional Law Quarterly by an authorized editor of UC Hastings Scholarship Repository. For more information, please contact [email protected]. Striking the Right Balance: Hate Speech Laws in Japan, the United States, and Canada by CRAIG MARTIN* Introduction The issue of hate speech has occupied the headlines of many democracies in recent years. Whether it be Charlottesville, Kyoto, or Warsaw, the rise of nativist, nationalist, and racist groups, expressing hatred towards minorities within society, has once again confronted us with the question of how far democracies can or should go in limiting certain extreme forms of hateful discriminatory expression. Certain types of hate speech, which have the purpose and effect of fostering hatred against groups defined by certain characteristics such as race, ethnicity, religion, gender, or sexual orientation, and which take the form of extreme vilification, denigration, and even dehumanization of its targets, are known to cause significant harm.1 This harm is suffered by the members of such groups, both in the form of direct emotional and psychological harm caused by the speech itself, and also in the form of increased levels of discrimination and persecution as a consequence of the hatred fomented in society by such speech. These increased levels of discrimination also do significant harm to the broader constitutional system, by undermining the democratic principles of equality * Professor, WashburnUniversity School ofLaw, B.A. (R.M.C.), J.D. (Univ. of Toronto), LL.M. (Osaka Univ.), S.J.D. (Univ. of Pennsylvania). This article was developed out of a much shorter chapter, {t H * 0) & Laws Without Sanctions:Hate Sp eech Laws and the BalancingofRights in Japan, in 1 W [THE LEGAL PROCESS IN CONTEMPORARY JAPAN: ITS STRUCTURE AND DYNAMICS] (Keiichi Ageishi et al. eds., 2017), substantially expanded to provide more robust comparative and theoretical analysis of the tension between rights posed by hate speech laws. I would like to thank Setsuo Miyazawa and Keith Hand for inviting me to present this at a special symposium on Japanese hate speech law at UC Hastings College of the Law, and the other participants of that symposium for their feedback and comments, in particular Jeff Adachi, Hiroshi Fukurai, Junko Kotani, Rory Little, David Makman, Setsuo Miyazawa, and Alice Yang. In addition, I would like to thank, for their comments and input at various stages of the project, Katie Baylie, Lois Chiang, Benson Cowan, Ayako Hatano, Jeff Jackson, Ali Khan, Mark Levin, Bill Rich, Takashi Shirouzu, and Frank Upham. 1. See infra notes 38 and 174-181 and accompanying text. 455 456 HASTINGS CONSTITUTIONAL LAW QUARTERLY [Vol. 45:3 and inclusiveness, and ironically by undermining freedom of expression itself, as the members of target groups are cowed into silence.2 Efforts to prevent such harm through the imposition of legal limits on this form of hate speech, however, would likely impinge upon the constitutional right to freedom of expression. Freedom of speech is viewed as a fundamental individual right in most democratic constitutional systems and is a right that international human rights law obliges states to guarantee, respect, and enforce. It is difficult to conceive of an approach to the prohibition of hate speech that would not constitute a government suppression of political expression based on its content or even its viewpoint, not just its form or its effects. Such content-based limitation on political speech is viewed with the greatest suspicion, and in the context of judicial review, the justification of this kind of limitation on the constitutional right of freedom of expression is difficult (though by no means impossible). This is because the regulation of political speech is seen as being inimical to the most fundamental values at the core of the right to freedom of expression, and as doing considerable violence to principles thought essential to the operation of a free and democratic society. We are thus confronted with two threats or potential harms to important values. If we take the harm of hate speech seriously, we must accept that it poses a threat to democratic values, and as will be argued here, even undermines constitutional rights. But to suppress hate speech similarly risks causing significant harm to constitutional rights and democratic principles. The challenge faced by constitutional democracies, therefore, is determining how to reconcile these competing imperatives, how to resolve this tension. Where to draw the line, how to find the right balance? Upon further reflection, and an examination of the approaches in different countries, we might further ask what, exactly, are we even trying to balance? For a comparative review of different approaches to the problem of hate speech suggests that different countries are trying to balance different things. This Article uses the occasion of Japan's enactment of hate speech legislation in 2016, the latest effort by a democratic system to grapple with the problem, to engage in a comparative examination of three very different approaches to resolving the tensions outlined above. The Article explores the purpose and scope of hate speech related laws, and the manner in which such laws have been judicially reviewed, in Japan, the United States, and Canada. It does so with a view to better understanding the different ways in which the balance might be struck and assessing whether there may be an optimal approach to achieving some equilibrium. There are significant 2. See infra notes 38 and 174-181 and accompanying text. Spring 2018] STRIKING THE RIGHT BALANCE 457 differences in all aspects of the approaches of the three systems. To begin with the legislative approach, the purported object and purpose, the mischief targeted, and the breadth and scope of the expression contemplated by hate speech related laws, are all quite different. With respect to the judicial approaches, how such law has been characterized and interpreted by respective judiciaries, and the constitutional doctrine that the law is subject to in judicial review, is also strikingly different. Identifying and reflecting upon some of these marked differences can assist in thinking about what formulation of hate speech law might be justified as a reasonable limitation on freedom of expression, as well as what adjustment to constitutional doctrine might be required to make such justification formally possible. There is, however, a singular and more fundamental difference that emerges from an examination of the Japanese and American approaches through the lens provided by the Canadian example. This difference is in the extent to which hate speech laws are understood to relate to the constitutional right to equal treatment and not to be discriminated against. As we will see, the Canadian legislatures and courts both quite explicitly recognize that the purpose of hate speech law is to advance the equal protection and equal benefit of law that are provided for in Section 15 in the Canadian Charter of Rights and Freedoms.3 It is precisely for this reason that the overriding concern, and the explicit object and purpose of hate speech laws, is to prevent discrimination. The Canadian system thus tends to view the justification of hate speech laws in terms of striking a compromise or balance between the constitutional rights to equality and to freedom of expression. This is very much in line with the manner in which international human rights law, as reflected in the International Covenant on Civil and Political Rights ("ICCPR") 4 and the International Convention on the Elimination of All Forms of Racial Discrimination ("CERD"),5 quite explicitly requires states to both implement hate speech laws for purposes of furthering the right to equality, and to nonetheless respect and enforce the right to freedom of expression. This is in marked contrast to both the Japanese and American approaches, which do not tend to recognize that hate speech laws implicate in any way the constitutional provisions providing for equal protection and the right not to be discriminated against. 3. Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Sched. B to the Canada Act 1982, ch. 11, section 15(1) (U.K.) [hereinafter Charter of Rights and Freedoms]. 4. International Covenant on Civil and Political Rights, article 20(2), Dec. 19, 1966, 999 U.N.T.S. 171 [hereinafter ICCPR] (entry into force Mar. 23, 1976). 5. International Convention on the Elimination of Racial Discrimination, 660 U.N.T.S. 195 [hereinafter CERD] (entry into force Jan. 4, 1969). 4589 HASTINGS CONSTITUTIONAL LAW QUARTERLY [Vol. 45:3 It is in this sense, then, that we find that the different approaches to hate speech law are trying to balance different things. In the Japanese and American approaches, the balance is between the fundamental constitutional right to freedom of expression on the one hand, and mere legislation on the other. Put slightly differently, it is a balance between harms to constitutional values and principles on the one hand, and on the other hand sociological harms that hate speech legislation seeks to address, but which are not recognized by the courts as being very grave. Not surprisingly, the line tends to get drawn in favor of the constitutional right to freedom of expression.
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